United States District Court, E.D. Missouri, Eastern Division
G. FLEISSIG, UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Defendant's pretrial
motions. Defendant, Vernon Johnson, is charged in a
superseding indictment with one count of being a felon in
possession of a firearm, one count of being a felon in
possession of ammunition, and two counts of tampering with a
witness. (ECF No. 46.) All pretrial motions were referred to
United States Magistrate Judge Patricia L. Cohen under 28
U.S.C. § 636(b). Defendant filed an Amended Motion to
Suppress Evidence and Motion to Compel the Government to
Provide Defendant with Unredacted Discovery. (ECF No. 52.)
motion to suppress evidence, Defendant alleges that (i) his
Fourth Amendment rights were violated when officers used a
key provided by the landlord to open the door and enter the
apartment leased by his girlfriend, Ashley Puryear, where
Defendant was also staying; (ii) that the two firearms
obtained from a search of a bedroom nightstand shortly
thereafter should be suppressed as the officers had neither a
warrant nor consent for the search; and (iii) that ammunition
and other evidence obtained as a result of a protective sweep
of the apartment, the arrest of Defendant, and the firearms
should all be suppressed as the fruit of the unlawful entry
and search. The United States responded to the motion,
asserting that exigent circumstances supported the
warrantless entry into the apartment, as it was reasonable
for the officers to believe, based upon a 911 call of a woman
yelling or screaming, and a second call shortly thereafter of
shots fired, that Ms. Puryear or her child might be in
danger. The government further asserted that following their
lawful entry into the apartment to confirm the safety of the
occupants, the officers were justified in conducting a
protective sweep, during which time they observed evidence in
plain sight, including ammunition, a spent shell casing,
bullet holes in the walls and a doorway, and a bedroom door
that appeared to have been broken into. This evidence,
together with the interview of Ms. Puryear and other evidence
obtained during their investigation, provided probable cause
to arrest Defendant. Finally, the government asserts that Ms.
Puryear provided consent to reenter the apartment and obtain
the firearms from the right-hand nightstand.
February 11, 2019, Magistrate Judge Cohen held an evidentiary
hearing, at which the government provided the testimony of
the landlord, Jadiene Davidson, and Sgt. Kelly Fisher and
Officer Mary Edmond, and ATF Special Agent Jeff Thayer.
Evidence was presented that at the time of the hearing
Officer Klein - who authored the police report - was
deceased. Defendant called Ms. Puryear, who repeatedly
refused to answer questions on cross-examination, purportedly
- and inappropriately - under the Fifth Amendment. Numerous
exhibits were also introduced, including photographs of the
apartment as it appeared when the officers first entered,
recordings of the communications with police dispatch, and
tapes of later telephone calls between Defendant and Ms.
Puryear. Following the filing of a transcript of the hearing,
the parties filed post-hearing briefs.
11, 2019, the Magistrate Judge issued her Order and Report
and Recommendation (the “R&R”) in which she
concluded that exigent circumstances justified the
warrantless entry into the apartment, and that any delay
between arrival at the apartment building and entry into the
apartment was reasonable under the circumstances. The
Magistrate Judge further concluded that Ms. Puryear consented
to the entry into her apartment, and the seizure of the
firearms from the nightstand. As Defendant did not challenge
either that the ammunition seized was in plain view or that
there was probable cause to arrest Defendant, the Magistrate
Judge did not further address those issues. (ECF No. 83.)
Defendant thereafter waived his rights under the Speedy Trial
Act, and requested a continuance of the trial setting, which
is now set for September 16, 2019.
filed objections (ECF No. 90) to the R&R, asserting that
(i) the landlord could not lawfully authorize entry into the
apartment, and exigent circumstances did not exist, as
demonstrated by the officers' delay in making entry; and
(ii) the officers did not have consent to re-enter the
apartment and seize the firearms from the nightstand.
Although Defendant states he is objecting to the Magistrate
Judge's findings of fact and legal conclusions, Defendant
does not identify any specific factual findings in the
R&R to which he objects. To the contrary, Defendant
states that “[a]s the Court did an artful job reciting
the facts of the case, ” he will not restate them, and
instead incorporates the facts stated in the R&R. (ECF
No. 90, at 1.) The Government filed a generic response to the
objections, asserting that the Magistrate Judge's
“findings of fact and conclusions of law are sound and
supported by the evidence, ” but otherwise providing no
additional discussion or legal reasoning.
party objects to a Report and Recommendation concerning a
motion to suppress in a criminal case, the court is required
to “‘make a de novo review determination of those
portions of the record or specified proposed findings to
which objection is made.'” United States v.
Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (quoting 28
U.S.C. § 636(b)(1)).
Court conducted a de novo review of the motion to
suppress, including a review of the transcript and the
exhibits introduced at the hearing. Based on that review, the
undersigned concludes that the Magistrate Judge made proper
factual findings and correctly analyzed the issues.
facts recited in the R&R, which the Court adopts and
incorporates, the Court adds the following facts for further
clarification. As reflected on Govt. Ex. 25,  at 7:53 a.m., the
police received the first relevant call, to 911. The caller
identified herself as a neighbor, and said she heard
screaming - someone saying, “Don't do that” -
and a lot of loud noises. She clearly identified the
apartment as number 605. She further stated that it was a
secure building, she identified her own apartment as 505, and
said she would buzz the police in if they contacted her.
(Govt. Ex. 25.) Officers responded to the call, but found no
disturbance in apartment number 605.
a.m. the second call was received. A woman who identified
herself as Ashley Puryear's friend said she was reporting
an emergency at 1600 Locust. She said her best friend,
Ashley, had just texted her saying, “I think I'm
going to die. He's shooting inside the apartment.”
The caller advised her belief that Ashley was referring to
shooting a gun, and that Ashley was in apartment 506. She
said Ashley lived there with her boyfriend Vernon, and that
Ashley had a four-month-old baby. She advised that
Vernon's older sister said that he was bipolar. She said
she called the police because Ashley couldn't do so
herself. In further conversation, the caller confirmed that
it was a secure building, that she did not know how to gain
entry, and that she (the caller) could text Ashley and tell
her to buzz the officers up. Id.
response, Dispatch issued a call regarding 1600 Locust,
apartment 506, which was identified as a secured building.
The report stated that a third-party had provided information
that the apartment's resident's child's father,
who was bipolar, was firing shots in the home.
prospect of a mix-up with respect to the apartment number
related to the first call became clear when one of the
officers who had responded to the first call contacted
Dispatch. The officer advised that in response to the first
call, they had gone to 1600 Locust and contacted the caller
in apartment 505, who answered and let the police in. Per the
caller's information, they investigated at apartment 605,
and discovered no disturbance. The person in 605 said he or
she did not hear any yelling or shots fired, and the officer
stated that they concluded their investigation. The officer
confirmed that the report in the first call identified
apartment 605, not 506. Id.
continued to have additional conversations with Ashley's
friend, and advised that officers were on the way.
Ashley's friend provided Ashley's telephone number,
and advised that the text from Ashley had been received at
8:13 a.m. Dispatch tried calling Ashley's telephone
number, but got no response. In the next communication with
Ashley's friend, the friend advised that she had sent
return texts to Ashley, but received no response. The friend
confirmed Ashley's apartment number and telephone number.
She also said Ashley worked at her own store, but usually
didn't go to work until 1:00. In response ...